Question #12 asks if the notice-and-takedown process sufficiently protects against fraudulent, abusive, or unfounded notices and what should be done to address this concern. Invalid takedown notices are most certainly a problem,[1] and the reason is that the system causes them to be a problem. As discussed in Section II.B the notice-and-takedown regime is inherently a censorship regime, and it can be a very successful censorship regime because takedown notice senders can simply point to content they want removed and use the threat of liability as the gun to the service provider’s head to force it to remove it, lest the service provider risk its safe harbor protection.

Thanks to courts under-enforcing subsection 512(f) they can do this without fear of judicial oversight.[2] But it isn’t just the lax subsection 512(f) standard that allows abusive notices to be sent without fear of accountability. Even though the DMCA includes put-back provisions at subsection 512(g) we see relatively few instances of it being used.[3] The DMCA is a complicated statute and the average non-lawyer may not know these provisions exist or be able to know how to use them. Furthermore, trying to use them puts users in the crosshairs of the party gunning for their content (and, potentially, them as people) by forcing them to give up their right to anonymous speech in order to keep that speech from being censored. All of these complications are significant deterrents to users being able to effectively defend their own content, content that would have already been censored (these measures would only allow the content to be restored, after the censorship damage has already been done).[4] Ultimately there are no real checks on abusive takedown notices apart from what the service provider is willing and able to risk reviewing and rejecting.[5] Given the enormity of this risk, however, it cannot remain the sole stopgap measure to keep this illegitimate censorship from happening.

Continuing on, Question #13 asks whether subsection 512(d), addressing “information location tools,” has been a useful mechanism to address infringement “that occurs as a result of a service provider’s referring or linking to infringing content.” Purely as a matter of logic the answer cannot possibly be yes: simply linking to content has absolutely no bearing on whether content is or is not infringing. The entire notion that there could be liability on a service provider for simply knowing where information resides stretches U.S. copyright law beyond recognition. That sort of knowledge, and the sharing of that knowledge, should never be illegal, particularly in light of the Progress Clause, upon which the copyright law is predicated and authorized, and particularly when the mere act of sharing that knowledge in no way itself directly implicates any exclusive right held by a copyright holder in that content.[6] Subsection 512(d) exists entirely as a means and mode of censorship, once again blackmailing service providers into the forced forgetting of information they once knew, and irrespective of whether the content they are being forced to forget is ultimately infringing or not. As discussed above in Section II.B above, there is no way for the service provider to definitively know.Continue reading »

Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA’s potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content,[1] the DMCA conditions its protection.[2] And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.

In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.

Although some courts are now requiring takedown notice senders to consider whether the use of the content in question was fair,[3] there is no real penalty for the sender if they get it wrong or don’t bother.[4] Instead, service providers are forced to become judge and jury, even though (a) they lack the information needed to properly evaluate copyright infringement claims,[5] (b) the sheer volume of takedowns notices often makes case-by-case evaluation of them impossible, and (c) it can be a bet-the-company decision if the service provider gets it wrong because their “error” may deny them the Safe Harbor and put them on the hook for infringement liability.[6] Although there is both judicial and statutory recognition that service providers are not in the position to police user-supplied content for infringement,[7] there must also be recognition that they are similarly not in the position to police for invalid takedowns. Yet they must, lest there be no effective check on these censorship demands.

Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user’s speech predicated on mere allegation. Mandatory injunctions are disfavored generally,[8] and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful.[9] To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.Continue reading »

I’m seeing a lot of friends and others who generally hang out near me on the left of the political spectrum express outrage at a recent vote in Congress to reject fixing what at first glance seems like a terrible loophole: People on the terrorist watch list can still buy guns. Even President Barack Obama, who called Sunday night for a law that would prevent people on a subset of the terror watch list from purchasing a firearm, is among this crowd.

Their outrage stems from the logical reaction, “If there are people we think are bent on doing us harm, why are we giving them easy access to the tools to do it?”

The concern is reasonable. The proposed remedy—to deny people on the watch list the ability to buy guns—is not, however. Not because it has anything to do with guns, but because it has to do with lists.Continue reading »